The opinion of the court was delivered by: JACKSON
This matter comes before the Court on cross-motions for summary judgment.
Plaintiff Unification Church is a nonprofit California corporation known as the "Holy Spirit Association for the Unification of World Christianity" which alleges itself to be an "international religious organization" having its principal office in the United States located in New York. Plaintiff Nikkuni is a Japanese national residing in the U.S. on whose behalf the Unification Church has filed a petition with the Immigration and Naturalization Service for permanent residence in the United States. Plaintiffs Misono and Vanalderwert are Japanese and French nationals, respectively, also residing here, for whom the Unification Church has filed petitions for immigrant visas.
Defendant INS is responsible for enforcing the Immigration and Nationality Act, 8 U.S.C., Sections 1101 et seq. Plaintiffs seek review of decisions of the INS denying the individual plaintiffs' applications for status adjustments and orders for their deportation.
The material facts with respect to each of the individual plaintiffs, and with respect to the Unification Church itself, are not in dispute. They appear affirmatively in the administrative records made before the INS, are not contradicted by other evidence of record, and are conceded (with minor semantic caveats) by defendant in its response to plaintiffs' statement of undisputed material facts.
Both Nikkuni's application for permanent resident alien status and Misono's and Vanalderwert's applications for immigrant visas contemplated their employment by the Unification Church. Aliens who enter the U.S. to work may not do so unless the Secretary of Labor has certified that there are not sufficient U.S. workers able, willing, qualified, and available to perform the same labor. 8 U.S.C., Sections 1182(a) (14), 1153(a) (6).
The Department of Labor has made a "blanket certification" with respect to certain occupations, including "aliens with a religious commitment who seek admission into the United States in order to work for a non-profit religious organization." 20 C.F.R. 656.10(c) (2) (1982).
Yoko Nikkuni joined the Unification Church in Japan in 1965. She first entered the United States as a 29-year old tourist in November of 1973. Although her lawful presence in this country terminated the following May, she has continued to reside in the United States in the interim, at all times working for and supported entirely by the Unification Church.
In July of 1974 she applied for permanent residence to work as a "missionary" for the church. Her application was approved by an INS district director but disapproved on review by the regional commissioner. The Commissioner of INS then remanded for further proceedings, essentially a supplementation of the record, which included Nikkuni's oral testimony under oath before an INS examiner in October of 1979. On August 15, 1980, a new district director denied the application, certifying the decision, as he had been instructed, directly to the Commissioner for review. On December 15, 1980, the Commissioner affirmed the decision of the district director. On March 2, 1981, Nikkuni's parole pending determination of her application was revoked.
The grounds upon which Nikkuni's application was denied are somewhat protean. In 1977 the regional commissioner who reversed the district commissioner's approval of her application did so because the work to be done by Nikkuni was the same as that required of all members of the denomination and could be described essentially as "proselytism." She could not be described as a "missionary," he said, nor had she demonstrated any "special skills, training and experience" qualifying her for the work to be expected of her. The Commissioner remanded the application to the district director to supplement the record with respect to the nature of the Unification Church itself, stating that it was impossible to ascertain whether Nikkuni possessed the requisite skills, training or experience, or the "religious commitment required of a missionary," because the Unification Church was a "recently organized church of relatively modest proportions in terms of membership in the United States." By August of 1980 the record before the district director had been supplemented with evidence that:
The Holy Spirit Association for the Unification of World Christianity was founded in Korea in 1954 by Sun Myung Moon when "he received (the revelation of) the Divine Principle;" that the theological doctrine of the Unification Church is based upon the Divine principle which explains man's relationship to God, emphasizes the teaching of Jesus Christ of the necessity to become one with God in love and truth and offers religious solutions to the problems confronting mankind; that the doctrine of the Church is set forth in a comprehensive text known as "Divine Principle" and serves as the sacred scripture of the Church, together with the Old and the New Testaments. Religious worship is conducted by the Unification Church in daily prayer sessions in formal morning and evening services on Sundays and in evening worship services on Wednesdays. Such services include prayers, hymns, sermons, and readings from the Old and the New Testaments and from the Divine Principle. The Church also conducts a 5:00 A.M. ceremonial pledge service each Sunday and a monthly prayer service at a designated holy place. Sunday school classes are also conducted for the study of the Divine Principle by the children of the Church members in various Church centers.
. . . The Holy Spirit Association for the Unification of World Christianity is a worldwide religious movement with missionary activity conducted in 110 countries with established churches in 25 countries, including Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Great Britain, Guyana, Iceland, Ireland, Japan, Korea, Luxemburg, Malta, Netherlands, New Zealand, Norway, Peru, Portugal, South Africa, Spain, Sweden, and Switzerland, in addition to being established in all 50 states of the United States and the District of Columbia.
The activities of the Church in the United States, including the selection of church officials, are conducted under the direction of the Board of Directors of the Church, "with guidelines from Church's ecclesiastical leader, Reverend Moon" with implementation of the decisions vested in a national staff and in center directors in approximately 120 cities throughout the United States. Approximately 7,000 members of the Church devote their full-time services to church activities, including teaching, prosyletizing, distributing church literature, and conducting various forms of religious worship. The education and training of missionaries, teachers, and church workers are provided in courses conducted at various training centers, including an international training center maintained at Barrytown, New York. In addition, the Unification Theological Seminary at Barrytown, New York provides a two-year post graduate degree program in religious education.
Notwithstanding that evidence, by applying "criteria" set forth in Matter of N , 5 I & N Dec. 173 (1953),
the district director held that the Unification Church was not a "religious ...